ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

April 04, 2016

Failing to provide a fair hearing requires the voiding a Civil Service Commission’s decision sustaining the termination of an employee by the appointing authority


Failing to provide a fair hearing requires the voiding a Civil Service Commission’s decision sustaining the termination of an employee by the appointing authority
Pinheiro v. Civil Service Comm. for the Cnty. of Fresno, California Court of Appeal, Docket F070473

John Pinheiro was dismissed from his position as the County of Fresno’s labor relations manager. The County of Fresno Civil Service Commission sustained Pinheiro termination and he filed a “writ of mandate” seeking a court order vacating the Commission’s decision.

Pinheiro contended that his right to a fair trial* was violated because the Commission:

(1) relied on evidence obtained outside the Commission hearing;

(2) used law enforcement records as a factor in sustaining his termination;

(3) relied on acts of alleged misconduct more than three years old;

(4) relied on evidence that was not admitted and excluding evidence relevant to his defenses; and

(5) relied on evidence of contact with another individual prior to any directive prohibiting such contact.

The trial court sustained the Commission’s action. However, the California Court of Appeals vacated the lower court’s ruling, explaining that Pinheiro had not been given a fair trial because the Commission considered and relied on information taken outside the hearing in reaching its decision.

Citing La Prade v. Department of Water & Power, 27 Cal.2d 47, the court said “The decision … should be based on the record and not on off-the-record discussions from which the parties are excluded,” indicating that administrative tribunals exercising quasi-judicial powers which are required to make a determination after a hearing cannot act on their own information and nothing may be treated as evidence which has not been introduced as such, inasmuch “as a hearing requires that the party be apprised of the evidence against him in order that he [or she] may refute, test and explain it.”

As Pinheiro had no opportunity to refute or explain such information, the Court of Appeals reversed the trial court’s ruling and remanded the matter to the Commission for a new hearing as “Pinheiro was denied a fair hearing” by the Commission.

* The court said that the “fair trial” requirement of California’s Code of Civil Procedure §1094.5 is not synonymous with constitutional due process and does not mandate “a formal hearing under the due process clause,” [see Pomona College v. Superior Court, 45 Cal.App.4th1716]. What is required, said the court is simply a “fair administrative hearing,” that affords the individual a reasonable opportunity to be heard.

The decision is posted on the Internet at:

An individual or organization must have “standing” in order to maintain an Article 78 action challenging an administrative decision


An individual or organization must have “standing” in order to maintain an Article 78 action challenging an administrative decision
Thomas v New York City Dept. of Educ., 2016 NY Slip Op 02154, Appellate Division, First Department

Michael P. Thomas, then a public school teacher, employed by the Manhattan Center for Science and Mathematics (MCSM), filed allegations with the New York City Department of Education [DOE’ that the court characterized as involving “a misappropriation of federal funds received by MCSM under Title I, Part A of the Elementary and Secondary Education Action of 1965, reauthorized as the No Child Left Behind Act (NCLB) of 2001.”

DOE, following an administrative investigation, determined that Thomas’ allegations of misappropriation of Title I funds were unsubstantiated. Thomas then initiated the Article 78 action challenging DOE’s determination. Supreme Court dismissed Thomas’s petition; the Appellate Division affirmed Supreme Court’s decision.

The Appellate Division ruled that Thomas, although a member of MCSM's School Leadership Team lacks standing to challenge the results of DOE's investigation of his allegations he had brought pursuant to "No Child Left Behind Written Complaint and Appeal Procedures" adopted by the New York State Education Department.

The court explained that Thomas’ status as a complainant who initiated an administrative investigation did not give him standing to maintain “a private right of action to challenge the agency's determination” unless he could demonstrate that he had suffered an actual injury as a result of DOE’s decision. The court concluded that Thomas had failed to demonstrate that he had “suffered and actual injury” as a result of DOE’s administrative determination.

Another obstacle to Thomas' ability to maintain the action, said the Appellate Division, was that Thomas did not "fall within the zone of interests . . . sought to be promoted or protected" by Education Law §2590-h or the NCLB”

The decision is posted on the Internet at:


April 02, 2016

Selected reports issued by the Office of the State Comptroller during the week ending April 2, 2016


Selected reports issued by the Office of the State Comptroller during the week ending April 2, 2016
Click on text highlighted incolor to access the entire report 

Fairport Industrial Development Agency- Unauthorized Practices for Economic Development Agencies
Officials with the Village of Fairport Industrial Development Agency made a series of financial and accounting transactions outside their legal authority, including granting $1 million worth of inappropriate gifts and commercial loans, according to an audit released by State Comptroller Thomas P. DiNapoli. An audit of the Fairport Urban Renewal Agency was also released citing similar issues.


Niagara Frontier Transportation Authority – Improvements Recommended
Almost 20 percent of the Niagara Frontier Transportation Authority’s assets are not in a state of good repair and it is unclear how the authority prioritizes capital improvements, according to an audit released by New York State Comptroller Thomas P. DiNapoli.


State Departments and Authorities

Department of Health- Early Assessment of the Encounter Intake System
Managed Care Organizations (MCOs) are contractually required to submit encounter transactions to inform DOH about each medical service provided to their enrolled recipients. Auditors found most Medicaid MCOs (42 of 52) were not ready to submit Medicaid encounter data to the new Encounter Intake System (EIS) by the Sept. 2015 implementation date. In response to the audit, DOH officials provided additional guidance to these plans and subsequently reported that the number of Medicaid MCOs ready to submit encounter transactions to the EIS improved from 10 to 43 by Nov. 20, 2015.

Department of Health– Oversight of the Early Intervention Program’s State Fiscal Agent
DOH generally provides effective oversight of the SFA that helps ensure early intervention (EI) claims are paid in a timely manner and the SFA fulfills contract deliverables related to customer service and data and reporting. Program claims are paid more quickly now than at the onset of the SFA, and DOH is working to resolve older unpaid claims.

Office of Temporary and Disability Assistance – Wage Subsidy and Transitional Employment Programs
OTDA provided adequate support and guidance to contractors to assist them in reporting Wage Subsidy Program and Transitional Employment program performance outcomes and preparing vouchers for wage subsidies and achieving milestones. However, OTDA’s system for tracking and monitoring milestones and goal attainment is outdated.

Department of Health- Eye Care Provider and Family Inappropriately Enroll as Recipients and Overcharge for Vision Services

Metropolitan Transportation Authority - Forensic Audit of Select Payroll and Overtime Practices and Related Transactions

Department of Motor Vehicles - Internal Control System Components

Public Service Commission - Pipeline Safety Oversight

State Education Department - Compliance With the Reimbursable Cost Manual

Department of Transportation - Performance Based Bus Safety Program


Municipal Audits

Town of Ashford - Water District

Town of Busti - Taxpayer Equity

Genesee County - Purchasing

Nanticoke Volunteer Fire Department - Misappropriation of Funds

Oswego County - Transfer Station Cash Receipts


School Audits

Alexandria Central School District - Financial Condition

Lyons Central School District - Multiyear Planning

Pearl River Union Free School District - Competitive Procurement

Valhalla Union Free School District - Financial Condition

April 01, 2016

Key elements in the proposed 2016-2017 New York State Budget


Key elements in the proposed 2016-2017 New York State Budget
Source: Office of the Governor

Key elements in the proposed 2016-2017 New York State Budget

1· Raising the minimum wage to $15 an hour in every region of the state

2· Enacting the longest and most comprehensive paid family leave policy in the nation

3· Holding the growth in state spending to two percent for the sixth consecutive year

4· Cutting the personal income tax, saving middle class New York taxpayers nearly $6.6 billion in the first four years, with annual savings reaching $4.2 billion by 2025

5· Providing $24.8 billion in School Aid – the highest in state history – and ending the Gap Elimination Adjustment

6· Investing $55 billion in the largest state transportation plan ever approved – including $27 billion for the DOT and Thruway and $27 billion for the MTA

A comprehensive summary of the proposed budget is posted on the Internet at:

Basics in processing claims of unlawful discrimination and, or, unlawful retaliation


Basics in processing claims of unlawful discrimination and, or, unlawful retaliation
Russo v New York State Div. of Human Rights, 2016 NY Slip Op 01951, Appellate Division, Fourth Department

In its decision in the Russo case the Appellate Division set out the basics in processing claims of unlawful discrimination and, or, unlawful retaliation as follows:

Unlawful discrimination

"To establish a prima facie case of employment discrimination, petitioner [is] required to demonstrate that [he or] she [is] a member of a protected class, that she [or he] was qualified for [his or] her position, that she [or he] was terminated from employment or suffered another adverse employment action, and that the termination or other adverse action occurred under circumstances giving rise to an inference of discriminatory motive.

If the court deems that a prima facie case has been made, "The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision.

If the employer is able to satisfy this requirement, "In order to nevertheless succeed on her [or his] claim, [petitioner] must prove that the legitimate reasons proffered by the [employer] were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason."

Unlawful retaliation

"In order to make out a claim for unlawful retaliation under state or federal law, a [petitioner] must show that (1) [he or] she [had] engaged in protected activity, (2) her [or his] employer was aware that [he or] she participated in such activity, (3) she [or he]  suffered an adverse employment action based upon [his or] her activity, and (4) there is a causal connection between the protected activity and the adverse action'  

Again, once that showing is made, "the burden then shifts to [the employer] to present legitimate, independent and nondiscriminatory reasons to support [its] actions.

“Then, if [the employer] meet[s] this burden, [petitioner] has the obligation to show that the reasons put forth by [the employer] were merely a pretext."

Arthea Russo filed a complaint with the New York State Division of Human Rights [SDHR] alleging that she had suffered adverse employment action while employed by the City of Jamestown Police Department [Department] because of her gender. Adopting the findings of the Administrative Law Judge [ALJ] who conducted the public hearing, SDHR dismissed her complaint alleging unlawful discrimination and retaliation. Russo then initiated an Article 78 action seeking a court order annulling SDHR’s dismissal of her complaint.

The Appellate Division said its review of SDHR’s determination is limited to the issue whether it is supported by substantial evidence, explaining that "[c]ourts may not weigh the evidence or reject [SDHR's] determination where the evidence is conflicting and room for choice exists. Thus, when a rational basis for the conclusion adopted by [SDHR] is found, the judicial function is exhausted."

The court found that in this instance there was substantial evidence to support SDHR’s determination that Russo was not discriminated against by the Department because of her gender.

Although agreeing with SDHR's determination that most of the employment actions at issue were not adverse because they did not constitute "materially adverse change[s] in the terms and conditions of [Russo’s] employment," the Appellate Division concluded that the three-day suspension imposed on Russo did, in fact, constitute an adverse employment action.

Notwithstanding this conclusion, the court explained that “[e]ven assuming, arguendo, that the imposition of the adverse employment action occurred under circumstances giving rise to an inference of discrimination, [it] nevertheless [concluded] that [Russo’s] employer … presented a legitimate, independent and nondiscriminatory reason to support its employment decision.”

Further, the court noted that there was substantial evidence in the record to establish that Russo, in her role as a court security supervisor, subjected one or more persons “to heightened security measures on a regular basis either for personal reasons or for no legitimate reason” and that she caused her male subordinate to do the same. In addition, the court said that there was substantial evidence to establish that Russo engaged in an excessive use of her personal cell phone and in excessive socializing while on duty.

The Appellate Division also found that Russo could not establish disparate treatment nor could she establish that she was subjected to unlawful retaliation.

Finally the court opined that “Even assuming, arguendo, that [Russo] met her initial burden [of demonstrating unlawful acts of discrimination], we nevertheless conclude that the [Department] presented a legitimate, independent and nondiscriminatory reason for issuing a counseling memorandum on sexual harassment based on evidence that [Russo]  had been sharing sexually explicit material that she had on her cell phone” and Russo “failed to establish that the reason for the memorandum was pretextual.

The decision is posted on the Internet at:

March 31, 2016

If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally


If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally
Nassau County Sheriff's Correction Officers Benevolent Assn., Inc. v Nassau County, 2016 NY Slip Op 02096, Appellate Division, Second Department

The Nassau County Sheriff's Correction Officers Benevolent Assn., Inc. [Association] brought a CPLR Article 78 action seeking a review the hearing officer’s decision  confirming a determination of the Nassau County Sheriff's Department [Department] to discontinue the General Municipal Law §207-c benefits being paid to Correction Officer John Thomas. Supreme Court dismissed the Association’s petition and the Appellate Division affirmed the lower court’s decision.

Thomas sustained a back injury in the course of performing his duties as a correction officer. He was absent from work due to his work-related injury and received benefits pursuant to GML §207-c. He subsequently returned to work in a restricted/light-duty capacity, “with no inmate contact and no carrying of a weapon.”*

In June 2009, a doctor appointed by Nassau County [County] determined that, as a result of his back injury, Thomas was no longer fit for any duty, making him again eligible to receive benefits pursuant to GML § 207-c. A subsequent evaluation by a County-appointed doctor in September 2009 reached the same conclusion. In February 2010, Thomas was examined by a County-appointed doctor who determined that he was now fit to return to work in a light/restricted-duty capacity.

The Sheriff's Department informed Thomas of the County’s physician’s determination and of his right to request a hearing to challenge the determination as provided for in the collective bargaining agreement [CBA] between the County and the Association. Thomas elected to submit the matter to a hearing whereby hearing officer would determine whether Thomas was capable of returning to work on restricted/light-duty assignment as of February 2010.** Although Thomas contended that the burden of proof was on the County to show that he was capable of returning to work in a restricted/light-duty capacity, the hearing officer disagreed, ruling that Thomas had the burden of proof to show that he was not fit to return to work in a light/restricted-duty basis.

At the administrative hearing that followed Thomas was represented by an attorney and submitted evidence, including the opinion of his personal physician, to contest the County’s medical examiner's conclusion that Thomas was capable of returning to restricted/light-duty work. The hearing officer weighed the conflicting medical opinions and concluded that Thomas was capable of returning to restricted/light-duty work.

The Association, contending that the hearing officer's determination was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion," filed an Article 78 petition arguing that Thomas was denied due process when the hearing officer placed the burden of proof on him to show that he was not capable of returning to work in a restricted/light-duty capacity.

The Supreme Court agreed with the hearing officer's conclusion that Thomas bore the burden of proof at the hearing, and denied the petition and dismissed the proceeding.

The Appellate Division commenced its review of the Association’s appeal of the lower court’s decision by noting that Thomas’ right to receive payments pursuant to GML §207-c "constitutes a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated, 'and a due process hearing is triggered when an officer on §207-c status submits evidence from his treating physician supporting the officer's claim of continued total disability'."

However, said the court, §207-c provides no definitive procedure to be followed, so the hearing procedure to be provided may be the subject of collective bargaining. As the parties in the instant proceeding had not “collectively bargained for a procedure to be followed when an officer contests a light-duty determination,” the Appellate Division ruled that the County was free to fashion a hearing remedy so long as its procedure provided Thomas with administrative due process.

The Appellate Division, citing Kigin v State of NY Workers’ Compensation Board, 24 NY3d 459, said: "Generally, procedural due process principles require an opportunity for a meaningful hearing prior to the deprivation of a significant property interest. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner."

Under the circumstances, said the court, Thomas was afforded administrative due process. In the words of the Appellate Division, “[r]equiring him to come forward with some evidence at the hearing to support his claim of ‘continued total disability’ did not deprive him of such right. Indeed, an officer's right to a due process hearing under the Fourteenth Amendment is not triggered until he or she submits such evidence.”

Accordingly, the Appellate Division ruled that Supreme Court had properly denied the Association’s petition and dismissed the Association's appeal.

* In 2003, Thomas was called to active military duty, where he was also given restricted duties because of his back injury. Upon his return from active military duty in 2008, Thomas again returned to his work as a correction officer in a restricted/light-duty capacity.

** Such determinations are made based on the medical condition of the individual at the time the challenged medical examination was administered rather than his or her medical condition at the time of hearing.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_02096.htm
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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html
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March 30, 2016

Omitting examples of the specific “out-of-title” duties the employee alleges he or she was assigned in his or her out-of-title work grievance is a fatal flaw


Omitting examples of the specific “out-of-title” duties the employee alleges he or she was assigned in his or her out-of-title work grievance is a fatal flaw
New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 2016 NY Slip Op 02280, Court of Appeals

Thomas Tierney was employed by the Office of Mental Health [OMH] as a Safety and Security Officer 2 [SSO2], a Salary Grade [SG] 15 position. When the Chief Safety and Security Officer [CSSO] of the Hudson River facility, position allocated to SG 20, transferred to another facility in June 2011, Tierney was advised that he would be serving as the Acting CSSO. He served in that capacity until Hudson River closed in January 2012.

In August 2011, Tierney filed an out-of-title work grievance with OMH in accordance with the three step review process set out in the relevant collective bargaining agreement seeking compensation at the SG 20 level for the out of title duties he alleged he was performing as Acting CSSO.

OMH granted Tierney’s grievance but noted that under the terms of the controlling collective bargaining agreement "[o]nly the Director of the Governor's Office of Employee Relations [GOER] has the authority to issue monetary awards" in the event an out-of-title grievance is sustained by the appointing authority.

Step 3 of the grievance procedure set out in the collective bargaining permited GOER to seek an opinion from the Civil Service Department’s Division of Classification and Compensation [DCC] as to whether the grieved duties substantially differed from those appropriate to the title “to which the employee is certified.” 

DCC undertook its own comparison of the duties and responsibilities of CSSOs and SSO2s* and determined that the duties Tierney described in the grievance he filed did not constitute “out-of-title” duties but, rather, were consistent with the duties of a SSO2.

GOER adopted the findings of DCC and denied the grievance. Tierney appealed GOER’s decision.

In his Article 78 petition Tierney alleged that, in addition to the duties he included in the grievance form he had submitted to OMH, he had performed the out-of-title duties DCC had listed as examples of out-of-title work in its decision. The Court of Appeals said that “[a]s those additional duties were not included in the grievance form and apparently were not considered by OMH, they were not considered by either Supreme Court or by the Appellate Division.”

Sustaining the decisions of DCC and GOER, the court said that “judicial review of administrative determinations is confined to the facts and record adduced before the agency." In the words of the Court of Appeals, “[t]he motion court concluded that GOER's determination that [Tierney’s] responsibilities as an acting CSSO were substantially similar to the job description of a SSO2 was not arbitrary and capricious.” A divided Appellate Division had affirmed GOER’s determination (see 126 AD3d 1267 [3d Dept 2015]) and the Court of Appeals affirmed the Appellate Division's decision.

Citing Nehorayoff v Mills, 95 NY2d 671, the Court of Appeals explained that where the administrative determination "is supported by a rational basis, and is neither arbitrary nor capricious, it will not be disturbed."

Noting that Civil Service Law §61(2) bars the assignment of an employee to "perform the duties of any position unless he [or she] has been duly appointed, promoted, transferred or reinstated to such position" other than when those duties are performed on a temporary emergency basis, the court said that there was evidence in the record to support the determination that Tierney was performing duties as the Acting CSSO that were “consistent with, and a natural extension of, his title as a SSO2."

Finding that the combination of out-of-title work and the work being performed for an extended period of time was not present, the Court of Appeals held that the conclusion reached by DCC and adopted by GOER was neither arbitrary nor capricious simply because it differed from OMH's conclusion.

Accordingly, said the court, “GOER's determination that Tierney was performing duties consistent with his position as a SSO2 and was not performing the key distinctive duties of the CSSO position [was] rationally based.”

A number of court decisions addressing out-of-title work and position classification grievance determinations are summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2011/04/out-of-title-work-and-position.html

* DCC also described some of the duties that are assigned to CSSOs and that would have been out-of-title for a SSO2 but such duties were not included in Tierney's grievance,

The decision is posted on the Internet at:


March 29, 2016

Agency shop fee statutes affecting public employees



Agency shop fee statutes affecting public employees
Friedrichs v. California Teachers Assoc., No. 14–915

On March 29, 2016, the Supreme Court issued its decision in Friedrichs v. California Teachers Assoc., 578 U.S. ___(2016).

At issue in this case was whether public-sector “agency shop” arrangements violate the First Amendment by requiring public employees to subsidizing speech not related to collective bargaining by public-sector unions unless the member elects to “opt-out.”

The Court said "The Judgment is affirmed by an equally divided Court."

The decision results in the Ninth Circuit Court of Appeals’ ruling standing, thereby permitting the California Teachers Association to continue its “agency shop” arrangement. Accordingly, a member of the negotiating unit must “affirmatively object” to “subsidizing nonchargable speech” by a public union and thereby receive a refund for the relevant portion of the agency shop fee attributed to supporting such “nonchargable speech.”

The decision is posted on the Internet at:

Determining the disability benefits due a firefighter as the result of a work-related injury can be complex


Determining the disability benefits due a firefighter as the result of a work-related injury can be complex
McKay v Village of Endicott, 2016 NY Slip Op 02129, Appellate Division, Third Department

The Appellate Division, in considering the Village of Endicott’s appeal of  decisions made by Supreme Court that awarded firefighter Joseph W. McKay certain disability benefits, set out  basic procedural guidelines with respect to determining a firefighter's eligibility for benefits available pursuant to General Municipal Law §207-a in the event he or she disabled as the result of a "line-of-duty" injury:

1. In the event a firefighter claims that he or she suffered a disability in the performance of his or her duties, the employer makes the initial determination as to the employee’s fitness to return to full-duty or restricted/light-duty work based on the opinion of a physician it appointed to medically examine the firefighter.

2. The County has the right to make this initial determination without holding a hearing or initiating any type of proceeding.

3. In the event the employer determines that the firefighter is fit to return to full-duty or restricted/light duty, the firefighter may challenge the employer’s determination.

4. Should the firefighter challenge the employer’s decision, he or she is entitled to a hearing during which he or she may be represented by counsel and an opportunity to contest the employer's medical examiner's conclusion by submitting his own evidence, including the opinion of his personal physician and other medical experts.

5. The hearing officer weighs any conflicting medical opinions to arrive at his or her determination whether or not the firefighter is capable of returning to full-duty or restricted/light-duty work.

With these guidelines in mind, the significant events in the MacKay case are as follows:

McKay, employed by the Village as a firefighter, sustained a work-related injury in 2008 and obtained workers' compensation benefits. He was also granted disability benefits pursuant to General Municipal Law §207-a(1) by the Village.

The Village subsequently discontinued McKay’s GML §207-a(1) benefits. 

McKay, however, was latter found eligible for such GML §207-a(1) benefits but, prior to that determination being promulgated, McKay commenced receiving performance of duty disability retirement benefits from the New York State and Local Police and Fire Retirement System. As a result, McKay was no longer eligible for GML §207-a(1) disability benefits.

McKay then sought post-retirement supplemental benefits payments from the Village that were available pursuant to GML §207-a(2). The Village denied his application and McKay initiated a CPLR Article 78 proceeding. 

In 2012, Supreme Court granted McKay’s petition in part and directed the Village to pay McKay GML §207-a(2) benefits retroactive to the effective date of his performance of duty disability retirement in 2010, "pending a determination consistent with due process" as to whether GML §207-a(2) supplemental benefits should be terminated.

The Village appealed the Supreme Court's 2012 judgment. While that appeal was pending, McKay submitted a proposed judgment to Supreme Court that would award him a set amount in retroactive benefits. While the parties were arguing over the court’s issuing a new judgment and the correct amount of retroactive benefits to be awarded, the Appellate Division affirmed the Supreme Court's 2012 Article 78 decision, (see 113 AD3d at 991-993). 

In February 2014 Supreme Court issued a judgment that awarded McKay $67,830.69 in retroactive benefits, interest and costs. The Village appealed the Supreme Court’s 2014 ruling.

The Appellate Division, however, limited the Village’s appeal of the Supreme Court's 2014 ruling to the Village's claim that Supreme Court had erred in calculating the amount of retroactive benefits the court awarded to McKay in its 2014 judgment. 

The Appellate Division agreed with the Village's contention that the lower court had erred in calculating "retroactive benefit," holding that “the award of retroactive benefits cannot stand.” 

The court explained that although the Village was not required to pay McKay his full salary as of the date that he was granted performance of duty disability retirement benefits, he was entitled to the difference between the amounts received as his retirement allowance and the amount of his regular salary or wages that he would have otherwise received had he not retired from the Village "until such time as he shall have attained the mandatory service retirement age applicable to him or shall have attained the age or performed the period of service specified by applicable law for the termination of his service."

The Appellate Division also said that Supreme Court’s 2012 judgment, and its affirming thereof, “make clear that [McKay] was entitled to receive the benefits afforded by GML §207-a(2) until a due process hearing could be conducted to determine whether those benefits should be terminated.”

Although Supreme Court’s 2014 judgment correctly required the Village to pay McKay benefits retroactive to the date of his 2010 retirement, and Supreme Court acknowledged that those benefits must be "reduced by the amount of the [workers' compensation] benefits" that McKay received as a result of his 2008 injury, the Appellate Division noted that Supreme Court did not "factor in the receipt" of the workers' compensation benefits received by McKay in making its award “due to a  lack of proof to establish the offset amount” and directed the Village “to seek redress in whatever forum it deems appropriate."

Agreeing that the proof presented concering the amount of the offset was "meager," the Appellate Division said that the award was premature without considering this “offset” and rather than require the Village to undertake “piecemeal efforts” to establish the appropriate offset amount, it remitted the matter "to Supreme Court for the holding of a hearing, without delay, at which the parties may present proof relative to . . . [the Village’s] entitlement to an offset" in consideration of the workers’ compensation benefits paid to McKay."

The decision is posted on the Internet at:

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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html
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March 28, 2016

Name clearing hearings


Name clearing hearings
Chang v Department of Educ. of the City of New York, 2016 NY Slip Op 02018, Appellate Division, First Department

The New York City Department of Education [Department] terminated Tzefang Frances Chang’s contract as a bilingual speech pathologist. Chang brought an Article 78 action challenging the Department’s action.

Supreme Court dismissed Chang’s petition after finding that the agreement between the Department and Chang gave the Department “the unconditional right to terminate the contract without cause and that such contract termination clauses are enforceable.”*In addition, the court said that the Department was not required to accept Chang's claims concerning the events that triggered the Department’s action. The Appellate Division sustained the lower court’s ruling.

Another element in this action concerned Chang’s demand for a “name-clearing hearing.” The Appellate Division held that Chang was not entitled to a name-clearing hearing as she presented no evidence to refute the statements of the Department’s Director of Employee Relations that “the code” placed on Chang's personnel file was for internal use only, and therefore she failed to show a likelihood of public dissemination of the material she alleged was “stigmatizing.”

In Swinton v Safir, 93 NY2d 758, the Court of Appeals held that with respect to an employer providing a former employee with a “name clearing hearing,” the material in the individual’s personnel records objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” Further, the individual seeking such a hearing carries the burden of proof and must show the “stigmatizing nature” of the information and its publication to the public.

Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.

In any event, a name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Prevailing at a name-clearing hearing does not entitle the individual to reinstatement to his or her former position.

* Presumably an employer’s “unconditional right” to terminate a contract employee would not extend to insulating the employer from liability if it terminated the individual for a constitutionally impermissible reason or purpose.

The decision is posted on the Internet at:
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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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